St. Clare's Hospital

National Labor Relations Board - Board Decisions

May 26, 1977

229 N.L.R.B. 1000 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Clare's Hospital and Health Center and The
Committee of Interns and Residents, Petitioner.
Case 2-RC- 16760
May 26, 1977
ORDER DENYING MOTION
On April 20, 1976, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding' which dismissed the representa-
tion petition on the ground that the Petitioner is not
a labor organization within the meaning of the Act.
Thereafter, on April 27, 1976, the Petitioner filed a
motion requesting the Board to reconsider its
decision and requesting a rehearing before the
Board. The Employer filed a letter opposing the
motion. Thereafter, both parties filed supplemental
statements of position.
The Board, having duly considered the matter,
finds that the record, exceptions, and statements of
position adequately present the issues and positions
of the parties. For the reasons stated below, we deny
the motion.
The Committee of Interns and Residents (hereafter
CIR) has elected to utilize this motion as a vehicle for
questioning the preemptive effect of our decisions in
Cedars-Sinai Medical Center2 and Misericordia Hos-
pital Medical Center3 on the status of medical interns,
residents, and clinical fellows (hereafter housestaff).
Since the precise effect of the 1974 health care
amendments on the status of housestaff apparently
remains in a state of uncertainty, we shall attempt to
clarify our view of the relevant legal principles.
After Congress deleted the statutory exemption of
nonprofit hospitals from the National Labor Rela-
tions Act in 1974, this Board began the delicate
process of integrating the vital nonprofit hospital
health care industry of approximately 1.4 million
workers4 in some 125 job classifications5 into the
preexisting structure of the Nation's labor laws.6 The
task was not an easy one, and at all times we were-
and indeed still are-guided by an overriding desire
to establish rational national labor relations policies
for a multifaceted industry. In our first encounter
with housestaff in Cedars-Sinai, we concluded that a
petition which sought their representation did not
raise a question concerning representation because
' 223 NLRB 1002 (1976).
2 223 NLRB 251 (1976).
:' 224 NLRB 865(1976).
120 Cong. Rec. S12103 (July 10, 1974) (remarks of Senator Williams).
I Hearings Before the Special Subcommittee on Labor of the Committee
on Education and Labor. House of Representatives, 93d Cong., Ist Sess. on
H.R. 1236 at 92, 97 (1973).
1 For a balanced discussion concerning the effects of the amendments,
see Health Care Bargaining. A Symposium, I Employee Rel. L. J. 389 (1976).
223 NLRB 251.
For a comprehensive summary of the New York litigation, see
229 NLRB No. 158
members of the housestaff "although they possess
certain employee characteristics, are primarily stu-
dents." 7 The CIR then sought to induce the New
York State Labor Relations Board (hereafter
NYSLRB) to resume its prior coverage of the
housestaff. This effort led to further litigation in the
state and Federal courts.8 Meanwhile, in response to
the efforts of the CIR, this Board instituted a Nash-
Finch proceedings seeking to enjoin the NYSLRB
from asserting jurisdiction over housestaff. The
District Court for the Southern District of New York
subsequently declined to issue a Nash-Finch injunc-
tion because in the court's view there exists no
national labor policy which requires that housestaff
remain completely unregulated, and thus the exercise
of state authority in that area is not preempted.' 0
Both the New York litigation and Chairman
Fanning's opinion herein reflect a fundamental
misunderstanding of the policy considerations which
underlie our conclusion in Cedars-Sinai that house-
staff are "primarily students." Much of the blame for
this misunderstanding can perhaps justifiably be laid
at our feet for we may not have been as precise as we
might have been in articulating our views.'" This
may merely be reflective of the fact that we do not
view Cedars-Sinai as a monumental decision, but,
whatever the cause, it is apparent that Cedars-Sinai
has been viewed by many as an aberration in
national labor policy, or, if not an aberration, at least
the initial step in a new direction. Nothing could be
further from the truth.
Cedars-Sinai is consistent with, and reflective of,
longstanding national labor policy as developed and
articulated by this Board. One common misconcep-
tion surrounding Cedars-Sinai is that it is primarily a
decision about the health care industry. This is just
not the case-it is primarily a decision about
students, albeit students planning to enter the health
care industry. When viewed in terms of other Board
decisions involving students, it becomes evident that
Cedars-Sinai is neither an aberration in national
labor policy nor a precursor of things yet to come.
For purposes of analysis, Board precedent pertain-
ing to students can conveniently be classified into
four general categories. The first category consists of
students employed by a commercial employer in a
capacity unrelated to the students' course of study.
N.L.R.B. v. Committee of Interns and Residents, 426 F.Supp. 438 (D.C.N.Y.,
1977).
9 See N.L.R.B. v. Nash-Finch Co d/b a Jack & Jill Stores, 404 U.S. 138
(1971).
'o N. L R. B. v. Committee of Interns and Residents, supra.
' Member Murphy is sympathetic to Member Jenkins' concurrence
because she agrees that the decisions in Cedars-Sinai and Kansas City
General Hospital and Medical Center, Incorporated and Hospital Hill Health
Senrvices Corporation, 225 NLRB 108 (1976), adequately set forth the Board's
reasoning. However, under the circumstances of this case, she joins the
majority herein.
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ST. CLARE'S HOSPITAL & HEALTH CENTER
As is true in virtually all cases involving unit
placement of students, a two-tiered approach is
utilized. Initially, the Board applies its traditional
community-of-interest standards to determine
whether the interests of the students in their
employment conditions are sufficiently aligned with
those of nonstudent employees to justify including
both in a single bargaining unit. If the finding with
respect to this primary issue is in the negative, and an
alternative unit limited to students has been peti-
tioned for, the second inquiry is whether a separate
unit of students is appropriate. In analyzing these
questions in cases falling within the first category, the
Board has historically reached one of three results:
(a) units that appropriately include both students and
nonstudents,'2 (b) units that include only students,' 3
and (c) situations in which students are not accorded
bargaining rights at all because placement in either
the (a) or (b) units would be inappropriate.1 4
In considering the bargaining rights of students
who work for a commercial employer in a capacity
unrelated to their educational program, the signifi-
cance of their status as "students" is necessarily
minimized. Such status is relevant only to the extent
that it may affect traditional community-of-interest
factors such as the amount or regularity of their
hours of employment, expectancy of permanent
employment, and in some cases the similarity of
compensation and responsibilities with those of
nonstudent employees. Thus, the status of such
individuals as students is sufficiently remote from
their employment interests so that, in terms of
employment responsibilities, they are "primarily
employees" rather than "primarily students," and
accordingly our traditional community-of-interest
standards may be applied without modification in
resolving unit placement issues.
12 See. e.g.. Pittsburgh Metallurgical Companv. Inc., 95 NLRB I (1951):
Burrows & Sanhorn, Inc.. 84 NLRB 304 (1949); Gruber's Super Market, Inc..
201 NLRB 612 (1973): Fairfax Famil) Fund, Inc., a wholl4t owned subsidiary
of Spiegel. Inc.. 195 NLRB 306 (1972); Hearst Corporation. San Antonio
Light Division, 221 NLRB 324 (1975).
1' See, e.g.. Sir Flags Over Georgia, Inc., 215 NLRB 809 (1974); The
Macke Companv,. Case 2-RC- 16725 (1975) (not reported in Board volumes).
Chairman Fanning makes much of the fact both here and in Cedars Sinai
that the Board approved a stipulation of the parties in Macke for an election
in a unit limited to students working in the cafeterias of Fairfield University.
Aside from the fact that additional considerations become operative when
the parties stipulate to the appropriateness of a particular unit (see, e.g. Otis
Hospirtal, Inc., 219 NLRB 164 (1975)), and noting that the majority did not
concede the relevance of Macke in Cedars-Sinai, the students in Macke were
not employed by their educational institution, but rather by a private
corporation. Accordingly. the difficulties attendant to the application of
collective bargaining to an educational rather than economic relationship
which underscore our decision in Cedars-Sinai were just not present in
Macke.
14 See. e.g.. Giordano Lumber Co., Inc.. 133 NLRB 205 (%961); Post
Houses, Inc., 161 NLRB 1159, 1171 72 (1966); ('rest Wine and Spirits. I.d.
168 NLRB 754 (1967): Saga Food Servic of (al/jornia, Ins., 212 NLRB 786
( 19741: Lake C(tti HonmeJor the Aged. Inc.. d b, 'a Shady Oaks, 229 NLRB 54.
fn. 1 (1977).
A second category of Board decisions involving
students is that in which the students are employed
by their own educational institutions in a capacity
unrelated to their course of study. In such cases, the
Board has historically excluded the students from
units which include nonstudent employees,'5 and
have not afforded them the privilege of being
represented separately.' 6 The Board has reasoned
that' in these situations employment is merely
incidental to the students' primary interest of
acquiring an education, and in most instances is
designed to supplement financial resources.
As in the first category, the students' motive for
seeking employment cannot be deemed educational
in the sense that it directly enhances their education,
and thus in terms of their employment responsibili-
ties they, too, must be considered "primarily employ-
ees." However, since their status as employees is in
most instances directly related to their continued
enrollment at the educational institution, their
relationship to the bargaining unit is normally
viewed as transitory. It is primarily for this reason
that the Board generally excludes students from
bargaining units of full-time employees at their own
educational institutions."
In yet a third category of cases, the Board has
concluded that where a student is employed by a
commercial employer in a capacity which is related
to the student's course of study the student will be
excluded from a unit of full-time nonstudent employ-
ees.' 8 This conclusion is based upon the fact that the
commercial employer in these situations is acting as
a surrogate for the educational institution, and thus,
unlike the nonstudent employees, the students'
interest in their employment is primarily educational
in nature. Accordingly, the students' long-term
interest in the employment relationship, including
l See. e.g.. The President and Directors of Georgetown College for
Georgetown University. 200 NLRB 215 (1972); Cornell Universit). 202 NLRB
290 (1973); Barnard College, 204 NLRB 1134 (1973)1.
"' San Francisco Art Institute, 226 NLRB 1251 I 1976).
17 Chairman Fanning implies that we can derive no direct support for our
decision in Cedars-Sinai from San Francisco Art Institute, supra. This is
literally true because. as we indicate below, a very different situation is
presented when students perform services for their educational institution as
part and parcel of their academic development. However. the Chairman
miscontrues our purpose. We are not here seeking to establish direct support
for our decision in Cedars-Sinai, but rather refer to San Francisco Art
Institute to demonstrate that our analysis in Cedars-Sinai. which focused
upon the nature of the relationship between the students and the institution
for which services were being performed. is identical to the analysis
historically utilized by the Board in all cases involving unit placement of
students,
1 See, e.g., Pawating Hospital Association. 222 NLRB 672 (1976),
Highview. Incorporated, 223 NLRB 646 (1976): Colecrafi Mfg. Co. Inc.. 162
NLRB 680. 688 (1967). But see Dorance J. Ben:schawel and Terrence D
Swingen. Co-Partners. d'b a Parkwood IGA Foodliner, 210 NLRB 349
(1974).
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages, hours, and conditions of employment, is
necessarily minimized.
The final category of cases is that in which students
perform services at their educational institutions
which are directly related to their educational
program.'s In such cases, the Board has universally
excluded students from units which include nonstu-
dent employees, and in addition has denied them the
right to be represented separately. The latter situa-
tion, of course, is precisely the one which has been
raised by the petition herein.
The rationale for dismissing such petitions is a
relatively simple and straightforward one. Since the
individuals are rendering services which are directly
related to-and indeed constitute an integral part
of-their educational program, they are serving
primarily as students and not primarily as employ-
ees.20 In our view this is a very fundamental
distinction for it means that the mutual interests of
the students and the educational institution in the
services being rendered are predominantly academic
rather than economic in nature. Such interests are
completely foreign to the normal employment
relationship and, in our judgment, are not readily
adaptable to the collective-bargaining process. It is
for this reason that the Board has determined that
the national labor policy does not require-and in
fact precludes-the extension of collective-bargain-
ing rights and obligations to situations such as the
one now before us.
It is important to recognize that the student-teacher
relationship is not at all analogous to the employee-
employer relationship. The former is predicated upon
a mutual interest in the advancement of the student's
education and is thus academic in nature. The latter
is largely predicated upon conflicting interests of the
employer to minimize costs and the employees to
maximize wages, and is thus economic in nature.
This is, in our judgment, an extremely important
distinction because the collective-bargaining process
"1 Cedars-Sinai Medical Center, 223 NLRB 251 (1976); The Leland
Stanford Junior University, 214 NLRB 621 (1974); Adelphi University, 195
NLRB 639 (1972).
2o Chairman Fanning attempts to undermine our reliance upon The
Leland Stanford Junior University, supra, by arguing that it was the nature of
the work being performed by the research assistants in that case-not their
status as students-which prompted dismissal of the petition therein. This is
simply not the case as evidenced by the Board's comparison of research
assistants and research associates. Both the assistants and the associates, as
their titles suggest, engaged in research. Thus, the nature of their "work"
was identical. However, the Board contrasted the assistants with the
associates by observing that the status of assistants was
. . a situation of students within certain academic guidelines having
chosen particular projects on which to spend the time necessary, as
determined by the project's needs. The situation is in sharp contrast
with that of research associates, who are full-time professional
employees who have already secured their Ph.D. degrees and work at
research under direction, typically of a faculty member. Research
associates are not simultaneously students, and the objective of a
is itself fundamentally an economic process. From
the standpoint of national labor policy, subjecting
academic decisionmaking to collective bargaining is
at best of dubious value because academic concerns
are largely irrelevant to wages, hours, and terms and
conditions of employment. From the standpoint of
educational policy, the nature of collective bargain-
ing is such that it is not particularly well suited to
academic decisionmaking. The inevitable change in
emphasis from quality education to economic con-
cerns which would accompany injection of collective
bargaining into the student-teacher relationship
would, in our judgment, prove detrimental to both
labor and educational policies.
The educational process-particularly at the grad-
uate and professional levels-is an intensely personal
one. It is personal not only for the student being
educated, but also for the instructors whose responsi-
bility it is to educate a large number of individuals
possessing a variety of educational backgrounds and
abilities. Collective bargaining on the other hand is,
as its very name implies, predicated upon "collec-
tive" treatment for all who are represented, and thus
in many respects may be said to represent the very
antithesis of personal individualized education.
In addition to being "collective," the bargaining
process is also designed to promote equality of
bargaining power,21 another concept largely foreign
to higher education. While participatory education is
on the rise, the student-teacher relationship is an
inherently inequalitarian one, it being assumed that
the teacher, by virtue of superior knowledge and
experience, is in a better position to determine the
most appropriate course of instruction and method
of proceeding. In this respect, the teacher and
student have a mutual interest in the advancement of
the student's education. Such mutuality of goals
rarely exists in the typical employment relationship,
and goes far towards explaining why collective
research associate's research is to advance a project undertaken by and
on behalf of Stanford as directed by someone else .... In contrast, the
RA's are seeking to advance their own academic standing and are
engaging in research as a means of achieving that advancement ....
This distinction led the Board to conclude that the
. . . research assistants are like the graduate teaching and research
assistants who we found were primarily students in Adelphi University,
195 NLRB 639, 640 (1972). We find, therefore, that the research
assistants in the physics department are primarily students, and we
conclude they are not employees within the meaning of Section 2(2) of
the Act. Accordingly, no question affecting commerce exists concern-
ing the representation of "employees" of the Employer within the
meaning of Section 9(cX 1) of the Act, and we shall dismiss the petition
herein.
2i 29 U.S.C. §151. See, generally, Cox, The Durv to Bargain in Good
Faith, 71 Harv. L. Rev. 1401, 1407 (1958).
1002
ST. CLARE'S HOSPITAL & HEALTH CENTER
bargaining can flourish in one sphere while consti-
tuting an anathema in the other.
In addition to believing that collective bargaining
is not adaptable to the structure of higher education,
we also believe that there exists a grave danger that it
may unduly infringe upon traditional academic
freedoms. Such freedoms encompass not only the
right to speak freely in the classrooms, but also such
fundamental matters as the right to determine course
length and content; to establish standards for
advancement and graduation; to administer exami-
nations; and to resolve a multitude of other adminis-
trative and educational concerns. If one were to
conclude that the student-teacher and employee-
employer relationships were in fact analogous, then it
would follow that many academic freedoms would
become bargainable as wages, hours, or terms and
conditions of employment. Once this occurs, Board
involvement in matters of strictly academic concern
is only a petition or an unfair labor practice charge
away.
The subject of hours, for example, is of particular
relevance when speaking of housestaff. Residents
and interns work notoriously long hours. From a
strictly educational standpoint, such hours may be
necessary in order to provide the students with as
broad an experience as possible. Also, it may be
educationally desirable for a particular student not
only to prepare the diagnosis of a patient, but to
administer the treatment as well. Unfortunately,
medical emergencies do not always conveniently
occur between the hours of 9 a.m. and 5 p.m.,
Monday through Friday. Thus, the flexibility which
medical educators need to schedule shifts, assign-
ments, transfers, etc., in an educationally sound
fashion could become bargainable should the house-
staff be afforded collective-bargaining privileges.
Program advancement is another subject of aca-
demic concern which could be affected by the advent
of bargaining. Continuation in many graduate
programs is dependent not only upon an assessment
of a student's educational progress to date, but upon
future potential as well. All such assessments are
necessarily subjective and-particularly with respect
to future potential-are not readily quantifiable.
Were students deemed to be employees, the failure to
recommend program continuation would be tanta-
mount to discharge and thus a mandatory subject of
22 See fn. 2. supra
2:1 See fn. I . supra.
21 It is important to reiterate that Cedars-Sinai was and is "consistent
with and reflective of' established Board policy-not necessarily "dictated
by" that policy. Most of Chairman Fanning's dissenting opinion is devoted
to pointing out the factual differences between Cedars-Sinai and the cases
which we have grouped into the first three categories. We quite agree that
those cases are factually distinguishable hence the four separate catego-
ries We note also that the instant case is factuall) distinguishable in that the
"work" of the housestaff personnel constitutes their course of studs and to
bargaining. In all likelihood, a student protest over
an unfavorable recommendation would end up
before an arbitrator, with the arbitrator being asked
to decide whether the subjective recommendation
was academically justified-an issue not generally
within the scope of most arbitrators' expertise.
In addition to those matters mentioned above,
other academic prerogatives such as examinations,
grading, course content and materials, program
duration, and teaching methods are likely to find
their way eventually to the bargaining table. To the
extent that this phenomenon limits the ability of
students and faculty to tailor the instruction to their
own individualized needs, the quality of the educa-
tional process is impeded thereby working not only
to the detriment of the hospital and students, but
ultimately to the detriment of the public as well. We
simply do not view such intrusions into traditional
academic freedoms as being in the public interest.
In view of this analysis, it is perhaps somewhat
easier to put our pronouncements in Cedars-Sinai
Medical Center22 and Kansas City General Hospital2 3
into their proper perspective. Our holdings therein
did not constitute aberrations in the application of
national labor policy nor indicate the striking out in
a new direction. They were, instead, consistent with
and reflective of established Board policy. 24 Our
conclusion that housestaff are "primarily students"
rather than "employees" connotes nothing more than
the simple fact that when an individual is providing
services at the educational institution itself as part
and parcel of his or her educational development the
individual's interest in rendering such services is
more academic than economic. For the reasons
stated above, we do not think that such a relationship
should be regulated through collective bargaining.
However, by our finding that housestaff are not
"employees," we certainly did not intend to imply
that we were thereby renouncing entirely our
jurisdiction over such individuals.25 To the contrary,
we have indeed asserted jurisdiction over all classifi-
cations at health care institutions-including house-
staff-but feel that extending bargaining privileges to
residents, interns, and fellows would not be in the
best interest of national labor policy. As we stated in
Kansas City General Hospital, we have "not put
hospital residents and interns beyond the reach of
national labor policy, but [have] rather held that to
this extent is analogous to Leland Stanford. We fear, however, that the
Chairman has lost the forest for the trees, because, irrespective of the factual
novelty of Cedars-Sinai, the essential point remains that the legal analysis
utilized by the majority in that case is identical to that which the Board has
historically utilized in all cases involving students.
25 Member Murphy notes that at the time of the Decision and Order
issued in Cedars-Sinai Medical Center, supra, she did not intend that the
Board preempt the field insofar as Federal labor policy might apply to
interns and residents, but she has now been persuaded by her colleagues
that this was the effect of the 4-to- I majority holding therein.
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extend them collective-bargaining rights would be
contrary to that very policy." 2 6
The conclusions which we have reached with
respect to housestaff fall, in our view, well within the
discretionary authority left to us by Congress in the
1974 health care amendments. The determination
that housestaff should not be afforded bargaining
privileges was made in the course of fashioning
appropriate bargaining units for the entire health
care industry. Congressional deference to our experi-
ence in such matters is reflected in the following
remarks of Senator Williams:
While the committee clearly intends that the
Board give due consideration to its admonition to
avoid an undue proliferation of units in the health
care industry, it did not within this framework
intend to preclude the Board acting in the public
interest from exercising its specialized experience
and expert knowledge in determining appropriate
bargaining units. [Emphasis supplied.]2 7
With respect to housestaff in particular, Congress
considered proposed amendments which would have
made it clear that housestaff were not 2(11) supervi-
sors. After noting favorably the manner in which the
Board had applied Section 2(11) to health care
professionals, Congress concluded that a specific
amendment was unnecessary so long as the Board
continued "evaluating the facts in each case in this
manner when making its determinations." 28 It is
precisely this sort of factual analysis which has led us
to conclude that not only are housestaff not
supervisors, but the confluence of their institutional
responsibilities and academic development also
precludes the regulation of this relationship through
collective bargaining.
Finally, we view our approach as being entirely
consistent with the 1974 congressional mandate to
develop a national approach to labor relations in the
health care industry. With respect to the National
Labor Relations Act in general, the Supreme Court
has long recognized that "the broad powers con-
ferred by Congress upon the . . . Board to interpret
and to enforce the complex Labor Management
Relations Act . . . necessarily imply that potentially
conflicting 'rules of law, of remedy, and of adminis-
tration' cannot be permitted to operate." 29 More
recently, the Court has recognized that a determina-
tion of Federal preeminence rests upon "a balanced
29 225 NLRB 108 (1976). Since we have not renounced jurisdiction over
housestaff we have not, as Chairman Fanning suggests, created a "no-
man's" land.
2T 120 Cong. Rec. S12104 (July 10, 1974).
2R 93d Cong.. 2d Sess., S. Rep. 93-766 at 6 (1974).
29 Vaca v. Sides, 386 US. 171, 178-179 (1967), quoting San Diego
Budldinr Trades(ouncil v. Garmon, 359 U.S. 236, 242 (1959).
:a Frmer v Unired Brorherhood of Carpenrers and Joiners of America,
Local 25, 430 U S. 290. 300 (1977).
inquiry into such factors as the nature of the federal
and state interests in regulation and the potential for
interference with federal regulation." 30
That Congress conducted just such a "balanced
inquiry" in passing the 1974 amendments is clearly
evidenced by remarks made in both the House and
Senate regarding a proposed amendment to the 1974
bill. The proposal, which was aimed specifically at a
Minnesota statute, would have insured the continued
viability of existing state regulation of health care
institutions. The proposal was defeated for reasons
articulated by Senator Taft:
I think it is important, however, to have a
national approach, in view of the problems we
have had and that have varied widely through the
country. There may be a very positive situation in
the Senator's [then Senator Mondale from Minne-
sota] own State which does not indicate at the
present time any need for a national law, but I
think on balance a national approach is desir-
able.3 '
Accordingly, it is apparent to us that the congres-
sional mandate which has existed ever since 1935 to
fashion national labor policies for certain industries
was expanded in 1974 so as to encompass the health
care industry. It was pursuant to the discretionary
authority subsumed in that mandate that we found
the interests of housestaff in their institutional
responsibilities to be academic in nature. In light of
this finding, we examined past precedent and
concluded that consistent therewith collective bar-
gaining should not be applied to what is fundamen-
tally an educational relationship. We do not view
these findings and conclusions to be either aberra-
tions in an otherwise uniform national labor policy,
nor in excess of our congressionally mandated
authority.
It is hereby ordered that the Petitioner's motion for
reconsideration and rehearing be, and it hereby is,
denied as lacking in merit.3 2
MEMBER JENKINS, concurring:
I concur, on the basis of Cedars-Sinai and Kansas
City General Hospital, in the result reached by the
majority, but in very little of their additional
reasoning. They have failed to distinguish between
students employed by their schools, whom we
exclude from units of nonstudent employees on
31 120 Cong. Rec. S6942 (May 2, 1974).
32 Member Walther finds no merit in the contentions either that he
disqualify himself from participating in this proceeding, or that he
improperly participated in the original decision herein, for the reasons set
forth by him in the Board's Order Denying Motion in Cedars-Sinai Medical
Center, 224 NLRB 626 (1976).
1004
ST. CLARE'S HOSPITAL & HEALTH CENTER
community-of-interest grounds, and students who
may be attending classes while working elsewhere, as
to whom their studies are no ground for special
treatment. This basic misunderstanding leads the
majority into erroneous reasoning and a seeming
willingness to regard any employees who also engage
in structured studies as per se being somehow and in
some respects disqualified from union representa-
tion. Because I disagree wholly with this view, it is
necessary that I disassociate myself from the majori-
ty decision, except in result.
CHAIRMAN FANNING, dissenting:
As I read today's majority opinion, the "fundamen-
tal misunderstanding" of Cedars-Sinai Medical Cen-
ter, supra, on the part of Judge Gellinoff,3 3 Judge
Stewart, 3 4 and myself,3 5 is that we do not perceive
that Cedars was, indeed, based upon "longstanding
policy" considerations denying to particular students
representation rights under this statute. Probably, we
are told, part of our problem was my colleagues'
failure to be as "precise" as they might otherwise
have been in setting forth those "policy" considera-
tions. No doubt, this latter admission is offered to
explain why neither the word "policy" nor a single
case citation was utilized in the Cedars majority
opinion. But, it is more notable, as a comment on the
quality of what is offered today as the first explica-
tion of those "policy" considerations, that the
majority opinions which "revise," "amend," or
"clarify" Cedars are related exclusively to Federal
"I Committee of Interns and Residents v. New York State Labor Relations
Board, 94 LRRM 2081, 79 LC I 1,710(N.Y.S.Ct.. 1976). In direct response
to this opinion and its possible impact, by virtue of its logic, on this Board's
attempt to preclude any state regulation of housestaff that may have been
resuscitated by Cedars-Sinai, this Board simply "revised" a decision upon
which Judge Gellinoff had relied to find Federal preemption could not be
sustained under Cedars-Sinai, as it read. The case, Kansas Ciry General
Hospital, 225 NLRB at 110, made the logical observation that since
housestaff were "not employees" (it did not say "student-employees" or "a
particular kind of employee") the hospital there involved was not their
"employer" within the meaning of Sec. 2(2) of the Act. If, of course, the
hospital was not a statutory employer the preemption argument could not
be made, so, 6 months later, and II days prior to the filing of the Federal
district court suit, my colleagues, sua sponte, "revised" Kansas City General
to strike that language. The revised decision is cited as 225 NLRB 108. See
my dissenting opinion there.
14 N.L.R.B. v. Committee of Interns and Residents, 426 F.Supp. 438
(D.C.N.Y., 1977). It is not my intention to engage in a lengthy comparison
between this decision and today's majority opinion. That the latter is a
direct response to the former will become clear to those willing to compare,
in detail, the two. Compare, e.g., 10001002, supra, with 426 F.Supp. at 452;
1003- 1004, rupra, with id. at 449-450: 1004, supra, with id. at 453. Unlike all
the other denials of motions for reconsideration of Cedars-Sinai-based
dismissals, which issued with a fairly uniform celerity, this one issues I year
after it was filed. Today's majority opinion, then it should be clear, amounts
to the resurrection of the Kansas City 11 technique. See fn. 33, supra.
:t, See my dissenting opinions in Cedars-Sinai, 223 NLRB 251 (1976);
Kansas City General (Revised), supra.
isN See fn. 33, supra.
:17 Basic to the majority's Federal preemption argument is Bethlehem
Steel Co. v. New York State Labor Relations Board. 330 U.S. 767 (1947),
which Judge Stewart found inapplicable to the Cedars-Sinai situation. See
his opinion at 426 F.Supp. 449-450. But it is commentworthy (and without
suggesting that it is no longer viable) that Bethlehem was decided prior to
court litigation which does not raise the specific issue
posed by Cedars. Cedars itself dealt only with the
question whether housestaff officers should be
covered under the statute. The "explanatory opin-
ions," Kansas City General Hospital (Revised)3 6 and
the instant Order Denying Motion, are directed
solely to a completely different issue-whether state
regulation of housestaff activity is, in light of Cedars-
Sinai, precluded by virtue of the preemption doc-
trine. It is, I think, a somewhat Procrustean jurispru-
dence to be fitting Cedars-Sinai to the bed of the
Federal court litigation. It is also an empty jurispru-
dence to do so without explaining, to this day, why
stripping housestaff officers of any rights (and
responsibilities) they may have had even before the
amendments is conducive to the harmonizing of
Federal-state interests. But that refusal might be
"explained," if not justified, by a congressional
desire, expressed in the legislative history of the
statute, and in its very language, to foreclose the
creation of a jurisdictional no-man's land.37 And it is
clear that a no-man's land has, despite the majority's
mere assertion to the contrary, been created here.38
Those more disposed towards rationalizing may
attribute my colleagues' preemption position to a
possible perception that Federal regulation of some
hospital employees (the nonhousestaff kind) cannot
exist alongside state regulation of other hospital
employees (housestaff). But our experience with
agricultural employers and all their employees, both
Taft-Hartley's elimination of the particular policy problem out of which it
arose whether "foremen" were more akin to "supervisors" or "employees"
under the statute. More significantly, it was decided prior to Landrum-
Griffin and the enactment of Sec. 14(cX2). Although that section, by its
language, is restricted to permitting, with proviso, States to assume that
jurisdiction the Board declines to assert because of the failure of the
employer to reach our discretionary jurisdictional dollar-amount standards,
the Landrum-Griffin history points unmistakably to the conclusion that Sec.
14(cX
2 ) was thought to be the total demise of the jurisdictional no-man's
land the Board, here, seeks to create. The historical forces at work on
Bethlehem's applicability here probably account for the fact that the
Supreme Court has not cited it in over 14 years, as far as I can determine,
see Colorado Anti-Discrimination Commission v. Continental Air Lines, 372
U.S. 714, 724 (1963), and then for a proposition which undermines my
colleagues' argument. They probably also account for the fact that
Bethlehem is not mentioned in the "watershed" preemption case, San Diego
Building Trades Council v. Garmon. 359 U.S. 236 (1959), nor in the two cases
which authoritatively trace the development of the preemption doctrine.
Local 76, International Association of Machinists & Aerospace Workers, A FL-
CIO v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976),
and Amalgamated Association of Street, Electric Railway d Motor Coach
Employees ofA merica v. Lockridge. 403 U.S. 274 (1971 ).
38 If the housestaff do not fall within the ambit of Sec. 2(3) and CIR is
not a 2(5) labor organization, as the majority has consistently found in every
housestaff case to come before this Board, the Board has no jurisdiction
over the subject matter. The only conceivable explanation for my
colleagues' contrary view that jurisdiction still resides is that the majority
must believe it retains jurisdiction to continually deny housestaff are
covered by the Act. Of course, the necessities of administration and reason
itself dictate that all judicial bodies have sufficient, if sometimes temporary.
jurisdiction to decide whether subject matter jurisdiction does. in fact, exist.
But it is patently frivolous to contend that subject matterjurisdiction having
been found lacking amounts to continuing jurisdiction.
1005
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those engaged in the agriculturally related functions
and those not (e.g., a winery's office clericals),
sufficiently undermines that notion.
It is easy, then, to become confused, even mysti-
fied,39 by what my colleagues have thus far wrought
in the saga of Cedars-Sinai. I still do not, for
example, understand exactly what my colleagues
mean when they state that Cedars was, for them, just
a case "about students at academic institutions" and
not a "decision about health care institutions." If
that is true, it strikes me as their first mistake. The
particular role of housestaff in our health care
delivery system is certainly worthy of greater
attention than such a conception of what is involved
in Cedars would seem to account for. A strike by
research assistants at a university does not, in all
candor, rise to the level of significance the health
care amendments attribute to a strike by doctors. I
do not, of course, wish to even intimate that the
former is not a matter of concern in our national
labor policy, but it is unmistakable, I think, that the
process by which the amendments came to be did not
contemplate the Agency entrusted with administra-
tion and enforcement of the amendments deciding
the propriety of a recognitional strike by doctors via
application of Board policies related to educational
institutions. In this regard, it may be noteworthy that
housestaff, if indeed "students," are unlike any
others and that the hospitals at which they work, if
indeed "educational institutions," are unlike any
others. The former proposition is self-evident, I
submit. I am not aware of any of the "students" in
the cases to which my colleagues allude having, for
but one example, legal authority to make incisions in
other human beings. The denomination of the
institutions involved as "educational" is equally
inappropriate. All of the educational facilities found
in the cited cases, unlike all of the hospitals found in
the housestaff cases, were incorporated under appli-
cable state education laws. Of course, that they were
merely reflects that the State, as well as the legislative
history of the amendments, which at no point, as far
as I can find, referred to any "educational" institu-
tions being added to Board jurisdiction, discerned
the obvious differences between universities and
hospitals.
:`" Hearings Before Subcommittee on Labor, Committee on Education
and Labor, House of Representatives, Oversight Hearings on the National
Labor Relations Act Procedures and Remedies (March 31, 1976) (remarks
of Rep. Thompson):
I was the author of that legislation which was cosponsored by a number
of my colleagues, supported by our ranking minority member . .. and
carried overwhelmingly. We never dreamt that this interpretation, such
an interpretation would follow from our deliberations or the hearings or
any other factor . . . it was clearly and absolutely not the intention of
the author . its sponsors and nowhere in the ... legislative history
is it indicated that interns and residents are to be considered as students
So, in this sense, if my colleagues did, in fact,
conclude that Cedars lent itself to application of
Board "policy" towards "students at academic
institutions," they were, I think, off to a dubious
start.
The precise statutory status of the housestaff is
equally confusing to me. In Cedars they stated, in
response to my reference to Macke 11,40 which I shall
discuss shortly, that housestaff were "students rather
than employees.' 4 1 And that is, I might add, the way
Judge Gellinoff and Judge Stewart read Cedars,
namely, that the Board had found housestaff to be
"nonemployees." 4 2 The majority has also uniformly
found the organizations which seek to represent
housestaff not to be labor organizations under
Section 2(5).
Today, as I read the majority opinion, my
colleagues at times intimate that, all along, they
really "meant" to find housestaff a particular kind of
employee, the "student-employee," and that Cedars
was simply intended to be a decision which empha-
sized the "student" aspect of that term. It is, of
course, legitimate to question why the majority, if
this interpretation is the one they seek, has not, in
consequence, retracted its finding of the nonlabor
organization status of CIR, since, obviously, if a
housestaff member is a kind of employee denied
coverage solely because of the purported unavailabil-
ity of an appropriate unit which could encompass
him or her, that fact would not, in the least, detract
from the labor organization status of the would-be
representative. It is equally legitimate to speculate
whether this entire "clarification" is more the result
of a perception of the necessities of Federal court
litigation than a perception of Cedars' potential for
confusion. 4 3 But, rather than unduly speculate on the
true significance of some of the subtle shifts in
emphasis evinced by my colleagues' latest attempt to
clarify Cedars, it is perhaps best to proceed to the
more substantive frailties of the latest "clarification,"
assuming that Cedars does, indeed, lend itself to
description as a case "about students at academic
institutions," and that Cedars did, indeed, hold that
housestaff were "student-employees" and not "non-
employees."
. . .when it came down it amazed me, amazed my counsel, amazed
anyone who had an association with the legislation.
40 The Macke Company, Case 2-RC-16725 (not reported in volumes of
Board Decisions).
41 223 NLRB at 253.
42 See Committee of Interns and Residents v. N. YS.L R.B., 94 LRRM at
2082, 79 LC 1 11,710; N.LR.B. v. Committee of Interns and Residents, 426
F.Supp. at 448-449.
43 See fn. 58, infra. See also Martin v. Roosevelt Hospital, 426 F.2d 155,
158 (C.A. 2, 1970).
1006
ST. CLARE'S HOSPITAL & HEALTH CENTER
Engaging in these assumptions does not, however,
help the majority's case, for a simple reason.
Although the outline which the majority superimpos-
es upon Cedars is "convenient," almost impressive, it
has one fatal deficiency, enough to compel my
colleague, Member Jenkins, to part company with
today's decision. The Board "policy" to which the
majority alludes does not, so far as is relevant here,
exist. That is to say, there is not, nor has there ever
been, any "longstanding policy" which denies repre-
sentation rights completely to "students" who are
also "employees" within the meaning of Section 2(3).
That my colleagues contend otherwise is simply
reducible to the consistency with which they equate
denying a student-employee inclusion in a particular
bargaining unit composed of other "employees" who
are not students with the "denial of representation
rights completely" the former denial is supposed to
evidence. That simply and incontrovertibly is not the
case.
In, for example, the majority's "first category" of
students, those "employed by a commercial employ-
er in a capacity unrelated to the student's course of
study," the majority opinion cites several cases which
assertedly support the proposition that the Board
"historically" has refused to "[accord] bargaining
rights at all" to certain students in this category. The
first three cases, Giordano Lumber,4 4 Post Houses,4 5
and Crest Wine,46 however, merely denied, respec-
tively, one temporary employee, several seasonal
employees, and one casual employee inclusion in a
broader unit with nonstudent employees. In fact, in
Giordano Lumber, three students were included in the
broader unit because they were found not to be
temporary employees. Clearly, the fact that the
excluded individuals were students was essentially
irrelevant. It was their temporary, seasonal, or casual
status which caused their exclusion, status they could
just as easily have had whether or not they were
students. Just as significantly, if we are, as my
colleagues would have it, to believe that Cedars'
foundation was built on analogy to cases involving
"students," the proper student cases to allude to
would be those which involved (a) students who were
regular full-time or part-time employees, and (b) a
request for the separate representation of these
41 Giordano Lumber Co., Inc., 133 NLRB 205 (1961).
45 Post Houses. Inc.. 161 NLRB 1159(1966).
46 Crest Wine and Spirits, Ltd. 168 NLRB 754 ( 1967).
;7 Saga Food Service of California, Inc., 212 NLRB 786, fn. 9 (1974).
4' I referred my colleagues to Macke II in Cedars-Sinai (see 223 NLRB at
254. fn. 5) and they conceded its applicability. (See Cedars-Sinai, supra at
253: "Our dissenting colleague has misconstrued the basis for our decision.
We are aware that the Board has included students in bargaining units and.
in a few instances, has authorized elections in units composed exclusivelv of
students." (Emphasis supplied.) The language of this statement makes it
clear that it was offered in response to my reference to Macke 11.). The only
logical explanation for the inconsistence between the quoted statement and
the entire approach taken in today's decision is that the majority realize it
students (since the housestaff unit is composed
exclusively of individuals the majority denominates
students). The only cited case in this category which
fulfills these necessary requirements is Saga Food
Service,4 7 a case so "historically" rooted in "Board
policy" that it arose only 3 years ago and was not
followed in a case decided 6 months later, Macke
11,48 where the Board authorized an election in a
group composed exclusively of the students found to
have no community of interest with the nonstudent
employees of The Macke Company, 211 NLRB 90
(1974).
The little attention paid, in the majority opinion, to
both the requirements of analogy and the detail of
cases is best exemplified by the analysis undertaken
in the "second category" of students. The "histori-
cal" denial of any form of representation rights for
students in this category is, we are told, a proposition
supported by reference to a lone case, San Francisco
Art Institute,4 9 which issued after Cedars-Sinai.
Although Member Jenkins50 and I dissented in San
Francisco Art, I do not choose to restate why I
believe that case was incorrectly decided. I am
willing to assume, for present purposes, it was not.
But it does strike me as jurisprudentially unsound to
cite, in support of the argument that Cedars was
based upon some "longstanding policies" towards
"students," a case that issued after it! But even to
accept the disposition in San Francisco Art, to accept
its citation today, and to assume Cedars itself was not
the prime mover in that decision, it was a case, as the
majority there stated, "influenced . . . chiefly by":
. . . the brief nature of the students' employ-
ment tenure, by the nature of compensation for
some of the students, and by the fact that students
are concerned primarily with their studies rather
that with their part-time employment. In our
view, the [students involved] are best likened to
temporary or casual employees.
Not one of those factors is present in the case of
housestaff. Of equal significance is how the majority
itself, in that case, framed the issue in cases involving
requests for the separate representation of student-
employees: "resolution . . . turns on whether the
found housestaff to be nonemployees in Cedars, realized what that holding
would mean in terms of its preemption argument, and, to save its
preemption position from defeat, decided to change the basis for (edars.
49 226 NLRB 1251 (1976).
so As previously indicated, Member Jenkins. though a member of the
majority in Cedars and Kansas City General Hospital II. does not join the
remaining Board Members in their attempt to create a Board "policy" of
total exclusion with regard to certain kinds of student-employees. No doubt,
that Member Jenkins' involvement with the shaping of Board "policy" is
more extensive, in terms of tenure, than any other Board Member's in the
history of this Agency, save mine, has something to do with this. Like me
colleague, 1, too, cannot recall how this particular policy about "students"
came to be.
1007
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[students] manifest a sufficient interest in their
conditions of employment to warrant representation
in a separate unit." If that is the majority's own test,
they could not possibly have applied it in Cedars to
dismiss the petition filed there or to deny this motion
for reconsideration.
With regard to the so-called "Board policy"
towards students in the majority's fourth category,51
where the majority places housestaff, we can, since it
is the question to be answered, dismiss the majority's
citation of Cedars in support of the "policy"
described. With Leland Stanford Junior University,5 2
on the other hand, some familiarization, it seems
once again, 53 is necessary. The issue in Leland
Stanford was, to state the matter in its clearest terms,
whether all "work" is the kind of "work" employees
as that term is used in the Act, perform. Cornell
University, amicus there, questioned, for example,
whether the term "employee" in Section 2(3) should
be interpreted so broadly as to encompass, in that
case, individuals who did not work for anyone but
themselves, subject to no one's control but their own.
The research assistants at Stanford were, unlike
housestaff who are, in the classic sense, "employees,"
the classic students who characterized, as we all have,
schoolwork as their "work." To the extent the
majority characterizes my disagreement with their
analysis of Leland Stanford as evolving from some
misconception on my part of the relevance of the
"nature of the work" performed by the research
assistants, they are, I am convinced, evading my
point. Plainly, it was not the nature of the work of the
research assistants which prompted the dismissal of
the petition in Leland Stanford, but, rather, the
absence of work in their duties, at least as the term is
used in the classic definition of"an employee"--one
who works for another subject to the latter's control,
for which work compensation is given.5 4 The case is,
in this regard, totally distinguished from Adelphi
University,5 5 the final case cited by the majority in
this "category." In Adelphi, as in most of the cases
cited throughout the majority's outline of "student
cases," the graduate assistants were not found to be
"students rather than employees," and were not
"denied representation rights completely." They
were, as that decision makes quite clear, found to
b' Strangely, although a policy of total exclusion can purportedly be
found in Board cases in the first, second, and fourth "categories" provided
by the majority today, apparently none can be found in the third.
Considering that the only difference between the first and third categories is
that the student in the latter is engaged in a capacity related to his or her
course of study, one would think a case or two might be cited in the third
category to support occasional "total exclusions." Of course, the answer to
this problem is gleaned from the fact that no Board case, up to and
including Cedars, can be found where the majority's "categorical"
breakdown is even referenced.
52 214 NLRB621 (1974).
a3 See fn. 14 of my dissent in Cedars-Sinai. The reader will note that
Leland Stanford, the supposed partial basis now for Cedars, was never
have no community of interest with other employees
in the unit fashioned.56
Under a more precise analysis, one which does not
gloss over the differences between individuals who
are "temporary" or "casual" employees and those
who are not, one which does not gloss over the
substantial difference between denying an individual
inclusion in a particular unit on community-of-
interest bases and "denying the individual represen-
tation rights completely," it is clear that Board policy
toward students is more properly set forth as being
concerned with (a) whether the student fits the
definition of employee (e.g., Leland Stanford); (b) if
he or she does, whether that student is a temporary,
seasonal, or casual employee, as opposed to a regular
employee of either full- or part-time status; and (c), if
the latter, whether that student enjoys a sufficient
commonality of working interests justifying his or
her inclusion in the same unit with other employees.
Of all the cases cited today by my colleagues in the
majority, only three are remotely (and that is all)
relevant to the issue presented by Cedars, even if we
were to accept the Cedars majority's finding that
housestaff are "students rather than employees":
Leland Stanford, which found the students nonem-
ployees; Saga Food Service, which found the students
employees but not entitled to coverage; and Macke
II, which retreated from the holding in Saga Food
soon after the latter's issuance. If Leland Stanford is
the basis for Cedars, the majority misapplied the facts
of Cedars, for, surely, housestaff "work," as that
word is traditionally understood, for the hospital, for
which they receive taxable income. Just as signifi-
cantly, for today's purposes, if Leland Stanford is
assumed to be proper basis for Cedars itself, then the
majority's preemption argument necessarily fails, for
the Board, by its own holding, has no jurisdiction
over the nonemployee housestaff member. Finally, if
Saga Food is the basis for Cedars, the Board, in
effect, overrules Macke 1I. And the stipulated nature
of the petition in Macke II has nothing to do with its
applicability to Saga Food. No party can stipulate to
this Board's subject matter or legal jurisdiction. If
individuals encompassed by a petition are "indepen-
dent contractors," or "supervisors," or "agricultural
mentioned by the majority in Cedars, despite the fact I discussed it at length
in response to the references to it at oral argument.
54 See my dissent in Cedars at 254-255, for a discussion of the definition
of "an employee" as used in the Act. In Leland Stanford, the Board stated:
"IT]he relationship of the RA's [the research assistants, as opposed to the
research associates found to be statutory employees] and Stanford is not
grounded on the performance of a given task where both the task and the
time of its performance is designated and controlled by an employer." 214
NLRB 623 (1974). See also my discussion of Leland Stanford in Cedars, at
fn. 14.
55 195 NLRB 639( 1972).
56 See, e.g.. id at fn. 8.
1008
ST. CLARE'S HOSPITAL & HEALTH CENTER
workers," no stipulation can legally overcome that
jurisdictional defect.
That my colleagues are willing to go to the lengths
they have not only to deprive housestaff of their
rights under this statute, not only to deprive the
States of their right to regulate in the void created by
this Board, but, in the latter effort, to so distort 40
years of Board precedent s5 (for surely this decision
will have ramifications far beyond the housestaff
question), is, indeed, an "aberration." Perhaps they
believe that the successful litigation of their preemp-
tion position will, despite its obvious drawbacks,58
despite the violence to our precedents that effort
requires, alleviate the justifiable criticism 59 Cedars
has generated. They are, I think, mistaken. In the
final analysis, it is the height of absurdity for
Congress to enlarge this Board's jurisdiction, to
encompass the vast bulk of health care institutions in
this country for the avowed purpose of minimizing
the potential disruptions of health care delivery
posed by organizational efforts of individuals not
covered by Federal regulation until the amendments,
57 As I understand the majority's fn. 24 my colleagues would have us
believe that, while there is no "precedent" as such for Cedars, the kind of
"legal analysis" undertaken in past cases was followed in Cedars so that it, at
least, is "consistent with and reflective or' Board policy as demonstrated by
those earlier cases. It is a matter of "legal analysis," we are told. But what
kind of "legal analysis" is it which characterizes finding certain individuals,
let us say, temporary employees as but a mere "factual difference" between
the case making that finding and Cedars, Do not factual differences bear
upon legal analysis? Are they not, indeed. the very substance of legal
analysis? Is it a "factual difference" to point out that the majority blithely
equates denying an individual inclusion in the same unit with other
employees with denying that individual "coverage under the Act"? Clearly,
today's effort is an attempt to confuse. If it were not, the majority would be
willing to answer, straightforwardly, the question: are you holding
housestaff officers to fall outside the definition of "employee" found in Sec.
2(3) of the Act? My colleagues in the majority know the impact an
affirmative answer to that question will have on their preemption appeal.
They also know the impact a negative answer will have on the district court
action instituted by CIR seeking the overturning of Cedars itself. And
plainly. no doubletalk like that evinced by the entire majority response to
my remarks, no misapplication of inappropriate metaphors, can disturb the
marked and meaningful jurisdictional distinction between holding individu-
als outside the ambit of Sec. 2(3) and holding them within it but not entitled.
as a matter of"national policy," to vote in a representation election. There is
and then, for this Board, upon some notion that the
decisional basis for the question of coverage is found
in "precedent" involving student janitors,co science
graduate assistants, 6 1 and physics majors, 62 to leave
without regulation those in the forefront of orga-
nizing activity in the health care field, doctors. And,
as Judge Stewart indicated in his opinion,63 the
recent strikes at various New York City hospitals are
the direct result of Cedars. They were also completely
incompatible with the amendments and precisely the
threat sought to be cured.
I would, therefore, grant the motion for reconsider-
ation, not because of the movant's allusion to the
possible preemptive impact of Cedars-Sinai, for I do
not believe Federal preemption can or should be
sustained here. But the error of Cedars-Sinai is,
perhaps, best exemplified by the majority's tortuous
efforts in subsequent cases, like this one, to give it
meaning. I would grant the motion for reconsider-
ation to give my colleagues the needed opportunity
to start all over again.
a point where the "failure to be precise" becomes an embarrassment. And
writing decisions to limit one's embarrassment is not an enviable example of
jurisprudence.
s" If the housestaff are simply "not statutory employees," the Board has
no jurisdiction over them. If they are students who also happen to be
employees, there is no policy of denying them coverage. Even if there were,
it would be a Board policy and must give way to the congressional policy
found in the amendments. If my colleagues can assume the question of
coverage was left to the Board's "discretion" (it may have been left to
informed discretion, but no less-see Cedars at 254. et seq.) preemption still
does not follow every time the Board exercises some "discretionary"
exclusion. See, e.g., Hanna Mining Company v. District 2. Marine Engineers
Beneficial Association. 382 U.S. 181 (1965). See finally fn. 37, supra.
59 See fn. 39. supra. Not even the AMA, the ultimate governing authority
for housestaff programs in this country, believes Cedars was correctly
decided. It has testified before Congress urging that it be overruled. See
Hearings on H.R. 2222, Before the Subcommittee on Labor-Management
Relations, House of Representatives (April 4, 1977) (remarks of Dr.
Mangold).
6e San Francisco Art Institute, supra
s6 Adelphi University, supra.
62 Leland StanfordJunior University, supra.
1S N.LR.B. v. Committee of Interns and Residents, 426 F.Supp. at 453.
1009